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    • Sec127 (3) repealed, now gone. S. 127(3)-(5) repealed (6.4.2007) by Consumer Credit Act 2006 (c. 14), ss. {15}, 70, 71(2), {Sch. 4} (with Sch. 3 para. 11); S.I. 2007/123, art. 3(2), Sch. 2
    • We used to recommend that people accept mediation but our advice has changed. The mediation process is unclear. Before you can embark on it you have to agree that you are prepared to enter a compromise – and that means that you agree that you are prepared to give up some of your rights even though you are completely in the right and you are entitled to hundred percent of your money and even though EVRi are simply trying to obstruct you in order to discourage you and also to put others who might want to follow your example off from claiming and even though they have a legitimate basis for reimbursement. Mediation is not transparent. In addition to having to sign up that you are prepared to give up some of your rights, you will also have to agree not to reveal any details of the mediation – including the result of the mediation – so that the whole thing is kept secret. This is not open justice. Mediation has nothing to do with justice. The only way of getting justice is to make sure that this matter goes to trial unless EVRi or the other parcel delivery companies put their hands up and accept the responsibility even if they do it is a gesture of goodwill. Going to trial and winning at trial produces a judgement which we can then add to our small collection to assist other people who are in a similar boat. EVRi had been leading you around by the nose since at least January – and probably last year as well – and their whole purpose is simply to drag it out, to place obstacles in your way, to deter other people, and to make you wish that you'd never started the process and that you are prepared to give up your 300 quid. You shouldn't stand for it. You should take control. EVRi would prefer that you went to mediation and if nothing else that is one excellent reason why you should decline mediation and go to court. If it's good for them it's bad for you. On mediation form, you should sign that you are not prepared to compromise and that you are not prepared to keep the result secret but that you want to share the results with other people in similar circumstances. This means that the mediation won't go ahead. It will take slightly longer and you will have to pay a court fee but you will get that back when you win and you will have much greater satisfaction. Also, once you go the whole process, you will learn even more about bringing a small claim in the County Court so that if this kind of thing happens again you will know what to do and you will go ahead without any hesitation. Finally, if you call EVRi's bluff and refuse mediation and go to trial, there is a chance – maybe not a big chance – but there is a chance that they will agree to pay out your claim before trial simply in order to avoid a judgement. Another judgement against them will simply hurt the position even more and they really don't want this. 300 quid plus your costs is peanuts to them. They don't care about it. They will set it off against tax so the taxpayer will make their contribution. It's all about maintaining their business model of not being liable for anything, and limiting or excluding liability contrary to section 57 and section 72 of the consumer rights act.     And incidentally, there is a myth that if you refuse mediation that somehow it will go against you and the judge will take a dim view and be critical of you. This is precisely a myth. It's not true. It would be highly improper if any judge decided the case against you on anything other than the facts and the law of the case. So don't worry about that. The downside of declining mediation is that your case will take slightly longer. The upside is that if you win you will get all your money and you will have a judgement in your favour which will help others. The chances of you winning in this case are better than 95% and of course you would then receive 100% of your claim plus costs
    • Nice to hear a positive story about a company on this form for a change. Thank you
    • too true HB, but those two I referred for starters - appear to be self admitted - One to excuse other lockdown law breaking, by claiming his estate away from his consistency and London abode was his main home the other if he claims to have 'not told the truth' in his own words via that quote - to have mislead his investors rather than broken lobbying rules   - seem to be slam dunks - pick which was your law breaking - it seems to be both and much more besides in Jenricks case Starmer was director of public prosecutions yet the tories are using seemingly baseless allegations for propaganda and starmer is missing pressing apparent blatant criminality in politics
  • Our picks

    • If you are buying a used car – you need to read this survival guide.
      • 1 reply
    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

      Car was dirty and test drive was two circuits of roundabout on entry to the showroom.  Was p/x my car and rushed by sales exec and a manager into buying the mini and a 3yr warranty that night, sale all wrapped up by 10pm.  They strongly advised me taking warranty out on car that age (2017) and confirmed it was honoured at over 500 UK registered garages.

      The next day, 18/1/24 noticed amber engine warning light on dashboard , immediately phoned BMW aftercare team to ask for it to be investigated asap at nearest garage to me. After 15 mins on hold was told only their 5 service centres across the UK can deal with car issues with earliest date for inspection in March ! Said I’m not happy with that given what sales team advised or driving car. Told an amber warning light only advisory so to drive with caution and call back when light goes red.

      I’m not happy to do this, drive the car or with the after care experience (a sign of further stresses to come) so want a refund and to return the car asap.

      Please can you advise what I need to do today to get this done. 
       

      Many thanks 
      • 81 replies
    • Housing Association property flooding. https://www.consumeractiongroup.co.uk/topic/438641-housing-association-property-flooding/&do=findComment&comment=5124299
      • 160 replies
    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
      We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
      Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Where next for bank charge reclaims?


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Apologies for yet another marathon post.

 

Paragraph 64 of the Supreme Court judgement seems to be the key to the possible ‘get out’ in the last sentence of the statement read out in court this morning.

 

64. Mr Crow did not submit before us that if the Relevant Charges formed part of the price paid in exchange for the package of services, they could not be included within the meaning of the word “price” in Regulation 6(2). I consider that Regulation 6(2) could apply to a complaint that the Banks’ charges overall, of which the Relevant Charges are an important element, are unfair because those who pay them pay an excessive amount in exchange for the package of services in respect of which they constitute part of the payment. Thus the issue of whether or not the Relevant Charges form part of the “price or remuneration, as against the goods or services supplied in exchange” within Regulation 6(2) is not necessarily academic. No attack has yet been made, however, on the level of the Banks’ charges overall.’ (my emphasis)

 

From the figures in the judgement, about 28% of current accounts get these charges, so 72% do not. This means that 28% of current account holders are paying for most of the services for all 100% of current account holders, which is patently unfair.

 

Just suppose that some other service for which we have little or no choice but to accept the standard terms operated in a similar way, say your electricity supplier. 72% of their customers are charged next to nothing for electricity, but 28% pay the bills for everyone. House 1 pays £20 a year, house 2 pays £2000. Would anyone stand for that? How about if the 28% were only in areas of low income, which is effectively the people most likely to get bank charges? Let’s get even more extreme. I need to buy blinds for my son’s bedroom. Suppose I’m a favoured customer so though the blinds retail at £500, I’m only charged £50. You need blinds too, but you’re not a favoured customer so you get charged £950 to make up the difference. You simply wouldn’t pay it, but with banks we have no choice. It is almost impossible to live today without a bank account but there’s very little to choose between them so far as charges are concerned.

 

Someone else has already raised the issue of using regulation 5 – sorry, I can’t remember who or where. Regulation 5 is:-

 

Unfair Terms

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. Banks can charge what they like and we have no choice but to pay. Seems a significant imbalance to me.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term. Goes without saying that the terms are not individually negotiated.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

 

Relevant bits of schedule 2 seem to be :-

 

‘© making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;the bank decide whether or not to pay that DD or whatever

 

‘(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;’ haven’t the banks maintained that if you keep within your overdraft limit, i.e. fulfil your part of the bargain, no charges?

 

‘(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;’

 

‘(k) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;’ Not sure how, but these might be relevant.

 

However, using regulation 5 is still subject to the clauses about core terms and price so I think that to use it we would have to find a way of arguing that charges are not part of the price for the services, and how could they be if most people do not have to pay them? The package of services is provided for a charge. Let the banks justify that charge being so much higher for a relatively small proportion of their customers. Debate on this one, please, hopefully leading to amended particulars of claim.

 

One final point, and if you’ve got this far I promise I’ll shut up in a minute. There is quite a lot of fuss at the moment over responsible lending, mostly in relation to loans and mortgages, but why should overdrafts be different? The bank chose to pay the direct debit or whatever took you into the overdraft, therefore they chose to lend you the money. How many stories are on these forums where just one stupid charge plus interest spirals totally out of control? The bank eventually ‘persuade’ their customer to take a loan to pay it off. Customer can’t afford to both make the loan payments and eat, so overdraft spirals out of control again leading to another loan and on and on and on. Justify that as responsible lending! Paying an unauthorised overdraft charge or a returned item charge is supposed to be paying for someone to make a decision as to whether to lend you the money, in which case they should be responsible decisions based on ability to pay, which they patently are not.

Would the customer have got into that never ending spiral if the bank had spelled out the effects of not clearing the overdraft every month as they now have to spell out the effects of only making minimum payments on the credit card? Possibly – most of us do after all only have so much money each month to go around – but possibly not. Allegations of irresponsible lending might only be another string to the bow, but how and where could we use these?

 

I’m shutting up now.

RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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Thinking entirely 'out of the box', how about a challenge based on indirect discrimination, i.e. a practice that will tend to put a whole group of people at a disadvantage?

 

It is an accepted fact that people on low incomes are more likely to have charges applied to their bank accounts.

Disabled people are more likely to be on a low income, so are single parents, who are also more likely to be female.

Bank charges are therefore likely to discriminate against disabled people and women.

RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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Though wonder I received a tacky Birthday card from HSBC,:mad: had my account for 23 years, they owe me a lot of money.

 

'From the figures in the judgement, about 28% of current accounts get these charges, so 72% do not. This means that 28% of current account holders are paying for most of the services for all 100% of current account holders, which is patently unfair.'

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The bottom line is that if, as the banks have argued right up to the Supreme Court, unauthorised overdraft charges and the like are part of a 'package of services' then they have to justify why 78% of their customers are charged nothing or next to nothing for this package whilst the other 28% foot the whole bill.

 

It may not have been intended to be but it is Robin Hood in reverse. No other 'service provider' would get away with this.

 

Incidentally, I'm likely to be one of the people adversely affected if the banks decide to make their charges fair for everyone since my current account hasn't been overdrawn for nearly five years now. Even so, I'd much rather pay my fair share of charges than let someone else subsidise me.

RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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  • 2 weeks later...
The bottom line is that if, as the banks have argued right up to the Supreme Court, unauthorised overdraft charges and the like are part of a 'package of services' then they have to justify why 78% of their customers are charged nothing or next to nothing for this package whilst the other 28% foot the whole bill.

The rest of the bill is made up of interest forgone on credit balances ie they offer low interest rate whilst making money on credit balances, packaged accounts-for example Lloyds Select, Barclays Additions, NatWest Advantage Gold, and auxilliary fees ie safe custody, copy statements, stopping cheques etc,etc,

It may not have been intended to be but it is Robin Hood in reverse. No other 'service provider' would get away with this.

 

Incidentally, I'm likely to be one of the people adversely affected if the banks decide to make their charges fair for everyone since my current account hasn't been overdrawn for nearly five years now. Even so, I'd much rather pay my fair share of charges than let someone else subsidise me.

 

The balance was given as 50% interest forgone, 30% unauthorised fees and the rest was packaged accounts and auxilliary fees. OFT1005c has a bit more precise figures.

.

FSA Waiver on Bank Charges:http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/dir_quart_0709.pdf

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